The Roberts Court Round Three: What to Look For

As a new Supreme Court term opens, a core of four hard-line conservative justices are eager to implement a plan for radically remaking the court.


The first two years of Chief Justice John Roberts’ stewardship showed a court even more polarized than the Rehnquist Court, with fully one-third of all cases decided on a 5-4 split. This Court has been dominated by a hard-line bloc of Chief Justice John Roberts and Associate Justices Samuel Alito, Antonin Scalia, and Clarence Thomas voting in virtual lock-step and Roberts and Alito voting together a full 89 percent of the time.

Together this conservative bloc of four justices is poised to overturn established judicial precedents and set aside or undermine state, local, and federal laws disfavored by influential Republican Party interest groups.

The last term, which ended in June, was epitomized by Justice Stephen Breyer’s highly unusual statement on its last decision day: “It is not often in the law that so few have so quickly changed so much.” This path was charted a quarter century ago in a series of blueprints for constitutional change drafted in then-Attorney General Edwin Meese’s Justice Department, which set out point-by-point strategies for moving the law far to the right, including strategic judicial nominations.

The question now is to what extent and in what types of cases the new conservative bloc will stay intact. What will the term further reveal, in Justice Breyer’s terms, about how much more change they intend and how quickly they intend to move? And what changes does that agenda portend?

1. Executive Power: The Executive Branch’s Accountability to the Rule of Law

Two cases will retest the Bush administration’s power to indefinitely incarcerate individuals without substantiating the claims, allowing prisoners an opportunity to challenge the incarceration, or allowing prisoners to contest the harshness of their treatment. The Bush administration’s power over detainees was previously partially rejected by the Rehnquist Court.

Boumediene v. Bush (argument not yet scheduled). This case will questions whether the Military Commissions Act of 2006 validly stripped federal court jurisdiction over habeas corpus petitions filed by foreign citizens imprisoned indefinitely at Guantanamo. It will also address whether habeas corpus petitions demonstrate unlawful confinement requiring the grant of habeas relief or, at least, a hearing on the merits.

Al Odah v. United States (argument not yet scheduled). The Court will decide whether petitioners who are confined at Guantanamo have a common law right to habeas under the Suspension Clause. The case will also address whether petitioners are entitled to the Fifth Amendment’s due process protections—whether combatant status review tribunal followed appropriate procedures—and protection under the Geneva Convention. Also, whether the Military Commissions Act of 2006 should be construed to eliminate the courts’ jurisdiction over petitioners’ pending habeas claims.

2. Partisan Disenfranchisement as “Voter Fraud”

The Court this term will consider whether, when political push comes to shove, it will continue to protect the right of all citizens to vote. In this case, a Republican-dominated legislature passed legislation requiring in-person voters to present photo IDs, which minority, lower-income, and aging citizens are well-known to lack disproportionately. The legislation’s guise is combating “voter fraud,” though virtually no credible evidence of such fraud exists.

The underlying question is whether the Roberts Court will find constitutional laws that disenfranchise large numbers of voters largely along partisan lines.

Indiana Democratic Party v. Rokita and Crawford v. Marion City Election Board (argument not yet scheduled). These cases will examine whether an Indiana statute mandating that those seeking to vote in-person produce a government-issued photo identification violates the First and Fourteenth Amendments to the United States Constitution.

3. Workplace Equal Opportunity: Baby Boomers and Other Discrimination Targets Beware

Last term’s Ledbetter decision, itself the target of legislation already approved by the House of Representatives to reverse it, is widely perceived as eliminating practical remedies for unlawful discrimination and other employee grievances, nullifying congressional intent, and hollowing out long-standing statutory protections. Five cases this term will present the court’s conservative bloc with follow-on opportunities to pursue these objectives more broadly.

CBOCS West Inc v. Humphries and Gomez-Perez v. Potter (argument not yet scheduled). These separate cases concern whether an employee may sue for retaliation when employers punish them for complaining of discrimination based on race or age. Both cases will show whether the court intends to read protection against retaliation out of the nation’s employment discrimination laws. Until now that has long been accepted as an essential safeguard, most recently by the court itself in the 2005 case of Jackson v. Birmingham Board of Education. The fact that the Court accepted review of these decisions, despite their consistency with established precedent, could indicate that a majority exists to overturn Jackson and similar precedents and strip discrimination victims of protection against employer retaliation.

Kentucky Retirement Systems v. EEOC (argument not yet scheduled). This case will examine whether plaintiffs in age discrimination suits must show that discrimination was “arbitrary,” i.e. not based on any “rational” reason, such as saving money. If the court accepts the interpretation of the Age Discrimination in Employment Act urged by Kentucky, employers could readily fabricate rationales for disadvantaging older workers in benefit, retirement, and other policies, leaving baby boomers and other older workers and retirees without protections they have long counted on.

Federal Express Corporation v. Holowecki (argument scheduled for Tuesday, Nov. 6). This case will address whether an employment discrimination suit must be dismissed because the Equal Employment Opportunity Commission failed to notify the employer and initiate statutory conciliation procedures after the complainant submitted to the commission a lengthy “intake questionnaire” detailing her grievance. This case involves the interpretation of filing prerequisites and deadlines written into the Age Discrimination in Employment Act, and will thus throw light on whether a majority of the court intends to continue, in the wake of its controversial 5-4 May 2007 Ledbetter v. Goodyear decision, to erect barriers that, in effect, close courthouse doors to employment discrimination victims.

4. Preemption: States’ Authority to Ensure Meaningful Redress for Injury, Death, or Financial Loss Caused by Corporate Misconduct

Two cases this term pit consumers against corporate interests in an area of law—preemption of state legal protections—that deeply affects the daily lives and needs of citizens. Though not widely noted, preemption has been among the most frequently and actively contested on the Court’s dockets since the onset of the Rehnquist era—averaging 8 percent of the Court’s annual dockets from 1975 through 2003.

Business interests have invested vast resources in litigation to convert federal consumer protection, health, safety, and environmental regulatory statutes into devices to “preempt”, i.e., invalidate state remedies for individual injury or loss.

Many decisions in the Supreme Court and lower federal courts have ruled in favor of preempting state remedial laws, with the result that, as Justices Ginsburg and Breyer observed in a recent opinion, “virtually all state law remedies are preempted but very few federal substitutes are provided.” This judicially imposed remedy gap often leaves the public with no meaningful protection, contrary to the manifest intentions of both Congress and state legislatures, thereby eliminating industry incentives to comply with applicable laws.

Riegel v. Medtronic (Argument not yet scheduled). This case will examine whether the Medical Device Amendments to the Food, Drug, and Cosmetic Act preempt (i.e., invalidate) state-law claims seeking damages for injuries caused by medical devices that receive pre-market approval from the Food and Drug Administration.

Rowe v. N.H. Motor Transport Assn (Argument not yet scheduled). This case concerns whether the Federal Aviation Administration Authorization Act of 1994 preempts states from exercising their public health police powers to regulate carriers that deliver contraband such as tobacco to children.


5. Retirement and Health Security: Meaningful Relief Under the 1974 Employee Retirement and Income Security Act

Past Supreme Court decisions have turned the health-and-retirement-security-enhancing goals of the Employee Retirement and Income Security Act upside-down. They have construed this landmark federal reform law to bar beneficiaries from obtaining “make-whole” relief from injuries or losses caused by misconduct from plan manager’ or affiliated health providers.

Combined with “preemption” decisions that, as noted above, nullify traditional state law protections, the Court’s decisions eliminating meaningful federal remedies have often deprived health and retirement plan beneficiaries of any hope for relief, under either state or federal law.

Larue v. Dewolff, Boberg & Associates, Inc. (argument not yet scheduled): This case will examine whether the Employee Retirement and Income Security Act permits a participant to secure full “make-whole” relief for losses to his retirement account caused by plan managers’ failure to follow the participant’s investment instructions.

This case could provide clues as to whether the Roberts Court will respond to widespread criticism and begin to reverse—or to ratchet up—a course of decisions that has insulated insurers, providers, and other fiduciaries from accountability, and increased their incentives to ignore, delay, and deny individuals’ claims for treatment or redress.

6. Securities Fraud: Liability to Injured Investors

One of the most closely watched and important securities fraud cases facing the high court in decades, Stoneridge Investment v. Scientific-Atlanta will throw light—along with the preemption and ERISA cases noted above—on the Roberts Court’s intentions regarding the accountability of perpetrators of unlawful misconduct to investors, beneficiaries, and consumers.

Stoneridge Investment v. Scientific-Atlanta (argument scheduled for October 9): This case questions whether investor class actions can target third parties, for example, retained accountants, lawyers, vendors, for their participation in the fraudulent schemes of corporations and directors.

7. Validity of state, local, and federal protections against handgun violence and crime.

The Court in 1939 unanimously held that the Second Amendment does not require that individuals have untrammeled power to possess or use weapons, but instead “must be interpreted and applied” in view of the amendment’s express and “obvious purpose to assure the continuation and render possible the effectiveness” of state militias extant in the late 18th century.

District of Columbia v. Heller (Supreme Court review not yet granted): This case explores whether the court will re-interpret the Second Amendment to the Constitution to invalidate a District of Columbia law that bans private possession of handguns, but allows possession of rifles and shotguns.

Review of the D.C. Circuit Court of Appeals decision in this case was requested on September 4, 2007, and the court has not yet ruled whether it will grant the request, but review is widely considered likely.

This case will throw light on the Roberts Court’s readiness to cast aside established precedent and realign constitutional law with the Republican Party’s political agenda.

The case will also test the Roberts Court’s judicial restraint and deference to local electorates and elected officials—who here are being challenged for meeting the traditional core local governmental responsibility of preventing crime and violence, through controlling handgun use and ownership.


8. Criminal Justice

Several cases on the court’s docket this term raise important issues regarding the rights of defendants in our criminal justice system, including sentencing regulations and the constitutionality of lethal injection.

Gall v. United States (argument 10/2). This case will examine whether federal judges may impose sentences less harsh than those provided in the federal sentencing guidelines when they believe the circumstances warrant it.

Kimbrough v. United States (argument 10/2). This case will address the fairness of mandatory minimum sentences that are 100 times harsher for possession of crack cocaine than for possession of powder cocaine.

Baze v. Rees (argument not yet scheduled). The court will consider whether the injection of lethal chemicals to execute prisoners on death row constitutes cruel and unusual punishment in violation of the Eighth Amendment. This will affect 37 states that currently use lethal injection for execution.

General Observations

The Court’s docket is so far shaping up to have a big effect—for better or for worse—on Americans’ daily lives. Major issues this term include workplace fairness, retirement security, access to health care, and protection against injuries or loss from unsafe products and fraud.

Cases on the court’s agenda this term will also test the Roberts Court’s readiness to set aside principles traditionally touted by judicial conservatives, such as respect for precedent, “strict construction” of the text of the Constitution or statutes, fidelity to framers’ “original meaning,” judicial restraint, and deference to federal and state electorates and elected officials.

In his first two years as Chief Justice, Roberts and like-minded colleagues were quick to subordinate such principles to reach results responsive to Republican Party agendas and interest group demands. A particularly egregious example was the Court’s June 2007 5-4 decision to strike down local elected school boards’ plans to promote racial diversity. Another was the January 2006 Scalia-Roberts-Thomas dissenting opinion (Justice Alito had not yet been confirmed) that would have permitted the Justice Department, by a stroke of the Attorney General’s pen, to invalidate the physician-assisted suicide law enacted by Oregon’s legislature.

This term is likely to similarly pit conservative judicial principle versus politically driven activism.

Read about the Reagan-era origins of Roberts and his allies’ judicial activism:


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